Juror was properly struck for cause

Where Fields, a prospective juror at appellant’s DUI trial, had been twice convicted for felony DUI, he was properly struck for cause.

Fields’s “two felony convictions coupled with the lack of clear evidence that his rights had been subsequently restored support the circuit court’s ‘reasonable doubt as to [Fields’s] qualifications’ to serve as a juror.”

Further, the trial court correctly granted the commonwealth’s motion in limine to prevent appellant from presenting a necessity defense.

Struck juror

Appellant “Warren argues that the circuit court erred in striking prospective juror Fields for cause. ‘The striking of any individual potential juror for cause, however, is committed to the sound discretion of the trial court.’ …

“‘As an appellate court, we must defer to a trial court’s ruling on the issue of whether to retain or excuse a prospective juror for cause and that ruling will not be disturbed on appeal unless there has been manifest error amounting to an abuse of discretion. …

“‘An abuse of discretion occurs only when “reasonable jurists” could not disagree as to the proper decision.’ …

“Code § 8.01-338 provides that persons convicted of a felony shall be disqualified from serving as jurors.” However, the Virginia Constitution permits the governor to “‘remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution[.]’ …

“The circuit court may excuse unqualified jurors on its own motion or upon a party’s challenge, Rule 3A:14(b), and ‘a venireman must be excluded if the trial court entertains a reasonable doubt as to his qualifications[.]’ …

“[T]he evidence showed that Fields was twice convicted of felony DUI. The VCIN record reflected these convictions and did not show that his rights had been restored.

“When the court accessed the Governor’s website for any clarifying information on Fields’s rights restoration, the website did not show records matching Fields’s name, which he testified had never changed. …

“Warren points out that the circuit court affirmatively stated regarding Fields’s testimony, ‘I think he’s telling the truth.’ However, ‘we will not “fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding the law has been misapplied.”’ …

“After stating its initial observation regarding Fields’s truthfulness, the circuit court continued to deliberate – the circuit court also stated that Fields ‘may be a little confused,’ and then, ‘I’m not sure what happened.’ …

“Fields’s testimony was equivocal as he could not name the governor who he claimed restored his rights, nor the date when they were supposedly restored; he only referenced that his rights were restored after President Obama was elected the second time.

“The circuit court acknowledged that Fields was not trying to mislead the circuit court in his voir dire testimony and that Fields believed his rights were restored. However, the circuit court ultimately was not satisfied with the evidence before it to prove that Fields was qualified to serve as a juror according to Code § 8.01-338. …

“Consequently, we find no abuse of discretion in the circuit court’s decision to strike Fields for cause.”

Necessity defense

When Warren was arrested for DUI, he explained he had been driving fast to aid his cousin, who had been shot.

“In the circuit court, the Commonwealth raised a pre-trial motion to object to Warren’s presentation of evidence to establish a necessity defense. …

“At oral argument, Warren argued that the law does not require him to proffer evidence on each element of the necessity defense to establish that the evidence is relevant and should go to the jury. …

“Virginia’s criminal procedure does not require a defendant to make a prima facie showing of a necessity defense to present evidence of the defense to the jury, as is the requirement to present evidence of an affirmative defense of insanity. …

“‘However, where there is insufficient evidence, as a matter of law, to support an element of the affirmative defense, the defendant can be precluded from presenting any evidence of duress [or necessity] to the jury[.]’”

In United States v. Bailey, 444 U.S. 394 (1980), the Supreme Court ruled that “‘If, as we here hold, an affirmative defense consists of several elements and testimony supporting one element is insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense.’

“[T]he circuit court did not err in requiring Warren to lay a foundation for the testimony he intended to present to the jury by proffering evidence on each element of the necessity defense at the motion in limine. The question then becomes whether Warren’s proffered evidence supported a necessity defense.

Application

The elements of a necessity defense “include ‘(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.’ …

“Assuming without deciding that Warren’s proffered evidence supports the first and third elements, the necessity defense fails because Warren proffered no evidence to support the second element: a lack of other adequate means to avoid the threatened harm. …

“At best, Warren proffered that he thought it would take an ambulance a long time to get to his cousin. Taking this statement as true, there is still no evidence that reasonable and legal alternatives were unavailable to Warren. …

“Warren did not proffer any evidence that he called 911 or anyone else to help his cousin and found them unavailable. … Furthermore, he did not proffer that he called other family members to help his cousin; nor that he attempted to get someone else to drive him to his cousin to avoid his driving under the influence.”

Conclusion

“We conclude that the circuit court did not abuse its discretion by excluding Warren’s proffered evidence because it lacked relevance.

“His evidence was only relevant to the necessity defense, and such evidence became immaterial to the case when he failed to proffer minimal evidence as to each element of the defense.”

Warren v. Commonwealth, Record No. 0533-22-1, March 7, 2023. CAV (published opinion) (Humphreys). From the Circuit Court of the City of Chesapeake (Telfeyan). Kelsey Bulger for appellant. William K. Hamilton, Jason S. Miyares for appellee, VLW 023-7-097, 15 pp.